Monday, December 13, 2010

Earl Warren: Homophobe

Sandy Levinson

I attended an excellent conference at the Yale Law School this past weekend, justifiably celebrating the publication of A Republic of Statutes: The New American Constitution, by William Eskridge and John Ferejohn. It argues, among many other things, that one simply cannot understand the American constitutional order if one ignores the "constitutive character" of what they call various "superstatutes" thoughout our history that have shaped that order and, for all intents and purposes, are as "hard-wired" as many of the specific clauses that we ordinary identify as "the Constitution." They are making an extremely important argument that deserves to be debated at length, as it certainly will. (For obvious starters, even if it is spectacularly unlikely that the Social Security Act will in fact be repealed, it would presumably be far easier to do that than to repeal, say, the "Inauguration Day Clause" of the 20th Amendment and replace it with something far more sensible than January 20.) But this obviously doesn't explain the title of my posting.

One of the chapters is about "The Anti-Homosexual Constitution and Its Dis-Entrenchment," which is extremely illuminating. One of the things I learned is the extent to which Earl Warren as the "liberal" governor of California, not only advocated the roundup legitimized in Korematsu, which is well-known and discussed by all of Warren's biographers (as something that must be "explained" even if not justified), but also participated in the efforts to engage in what might well be called the legal terrorization of gays and lesbians in California in the '40s. I was totally unaware of this. I suggested that the lack of attention previously paid to this aspect of Warren's career is evidence of the extent to which "we" simply accept as "normal" the repression directed at gays and lesbians until all too recently in our history.

I suspect that many would regard it as "unfair" to single out Warren for criticism, in the same way that one might regard it as equally unfair to note that some given denizen of Victorian England was anti-Semitic or the like. One expects more of Warren with regard to race and ethnicity in the '40s because, after all, there were groups actively fighting for their liberties. But there were no such "gay and lesbian rights" groups in that era, because to have expressed even public sympathy, let alone to come out oneself, would have exposed oneself to far greater risk than was the case with regard to, say, expressing sympathy for the ACLU or, in the North, the NAACP. Still, it was disconcerting, to put it mildly, to read some of Warren's comments (and the information about several distinctly regressive opinions involving gays and lesbians that are part of the "Warren Court legacy").

One of the striking arguments made by Eskridge and Ferejohn, incidentally, is that the country wasn't really ready for an opinion going the other way in Bowers v. Hardwick, any more than a 1956 decision in Naim v. Naim striking down bans on interracial marriage would have been generally accepted. (They therefore endorse what many see as the Supreme Court's cowardice in that decision, when it basically lied through its teeth about lacking jurisdiction in the case to avoid deciding it the only way that it could have been decided, after Brown, and, of course, the way it was decided 11 years later in Loving v. Virginia, in a decision written by Warren himself.) And they remain decidedly ambivalent about the current litigation in California, hoping that the Ninth Circuit will accept an argument hade in an amicus brief authored by Eskridge to uphold the District Court decision in Peary by focusing on specifics of California's legal regime (so that it is truly arbitrary to deny the right to marry given that specific regime) rather than attempt to decide the issue nationally at this time. One way of describing this position is that this is a time for carefully prudential decisionmaking rather than engaging in foolhardy "courage" that could well provoke a truly unfortunate backlash.

It's an exceptionally interesting book in all sorts of ways, including, of course, putting in a fascinating context the attempts by conservative Republicans on the bench to kill the new medical care bill before it, too, becomes "entrenched" within our constitutional order.


Great to know of this book! Hope i can find this on Amazon! thanks

Education Questionnaire

Sandy, did you mean to say "South"?

"would have exposed oneself to far greater risk than was the case with regard to, say, expressing sympathy for the ACLU or, in the North, the NAACP. "

As for Warren, perhaps his life prior to Ike's appointment was pure CA politics. But his after-life at SCOTUS was needed nationally, especially beginning with Brown v. Board of Education. Even hard-core Republicans find it difficult today challenging Brown, at least directly - rather, they attack the first African American President whose election they may attribute to Brown. It's okay to criticize Warren, but we should not avoid praising him as CJ.

Awhile back the Volokh Conspiracy had a thread in which readers were invited to speculate on which current day attitudes would be regarded, in the future, in the same way that racism or homophobia are regarded today. Perhaps the sense of moral superiority over ones forbearers will itself be viewed as an irrational prejudice.

I can see it now-- "Sandy Levinson- Tempophobe"

mls sets us a strawhorse with this:

"Perhaps the sense of moral superiority over ones forbearers will itself be viewed as an irrational prejudice."

We have had the benefit of experiences that have built upon our forbearers, who had presumably done likewise with their forbearers. It's not a matter of a sense of moral superiority but a different time, a different place, different circumstances, etc. Perhaps mls might agree that slavery was bad, especially since it and its evils were not addressed head-on by our Founders/forbearers back in the 1780s. We cut these Founders/forbearers some slack as we venerate them for the Revolution the Constitution and the Bill of Rights. Why? Because of their circumstances, although we might not today agree with how they handled or did not handle them. Over time, too much time, the slavery issue was finally resolved, followed by too much time of lack of civil rights for former slaves and their offspring. Hopefully with time we gain more wisdom and a sense of justice. But that's not claiming moral superiority. (Besides, who doesn't have a few skeletons in his/her closet.)

we venerate them for the Revolution the Constitution and the Bill of Rights.

I don't venerate them for the Revolution. I don't think that the cause of freedom from England and ending taxation without representation was worth a single life. Would you have been willing to die or have your children die for that cause? It's not as if England had enslaved the colonists. No, England would have freed those whom the colonists enslaved, as it did in its other colonies, if it could have.

When President Obama today can say "marriage" doesn't include same sex couples, the idea that Earl Warren in the day when they were deemed psychologically damaged by leading experts is unsurprising. One day we will find Obama's comments retrograde too. Many of us already do.

Henry, "taxation without representation" is a dubious way to summarize the Revolution.

It is not as if they fought over their taxes being too high. The concern overall was self-government. John Adams once said that James Otis' campaign against general warrants was the spark that started things. That involved invasion into the privacy of colonists.

The "long chain of abuses" listed in the Declaration of Independence was not limited to taxation policy. In effect, it was more like Franklin suggested -- "Americans" grew into their own, they no longer were only English.

I don't know if I would have supported a violent revolution, but if some power came in and did various things the English did to the colonists, it would be something I'd think worthy of risking one's life over.

As to slavery, English didn't end slavery in their possessions until the 19th Century. Their logic of parliamentary supremacy justified slavery laws -- unjust or not, they would under that principle be lawful. The principles of the American Revolution set forth a higher standard, one Northern states put in force soon enough.

I'm in accord with Joe's comment, including in response to Henry.

I just finished reading Jill LePore's "The Whites of Their Eyes - The Tea Party Revolution and the Battle over American History" published several months ago, well prior to the November elections. LePore describes a lot of history on the Revolution to compare with her observations of the Tea Party in the Boston area in 2009-10 and the history the Tea Party projects in reliance upon its causes. As Joe notes, it is not as simple as taxation without representation.

With regard to slavery, England did not formally end it until the 1830s. Of course there was Lord Mansfield's decision in 1772 in the Somerset case that in a sense outlawed slavery in England but not in the Colonies. It should be kept in mind that Jefferson's first draft of the Declaration included a rant against the British with respect to its role in slavery in the Colonies that was deleted because of concerns that the slave Colonies might not sign on. There was a strong abolitionist movement in MA Colony in the early 1770s prior to the Revolution, which made an effort to get the MA Colony legislature to outlaw slavery. The effort failed as John Adams was concerned that passage of such a bill would prevent unity with the slave Colonies. (We shouldn't necessarily hate John Adams for this, as he was at bottom anti-slavery. Circumstances.)

There is no moral error in criticizing previous generations for their moral failings. At any rate, I can think of no grounds for rejecting such criticism other than some form of relativism.

Of course, we should also temper our critiques with historical awareness, particularly in assigning fault to individuals. So, we might acknowledge that Warren's indifference to homosexuals' rights was historically unsurprising; that does not mean we should fail to note its wrongness.

By the way: could we not have dates as well as times for comments?

While I can agree with CTS on this:

"There is no moral error in criticizing previous generations for their moral failings."

let's consider our present generation and its moral failings even with the benefit of knowledge of the moral failings of previous generations. Some may ask me to identify the moral failings of our generation. For the present I'll pull an Ike who when asked to point out something positive about Dick Nixon said he take a couple of weeks to come up with something. I'm sure my list would be introduced by "Let me count the ways." Of course, included would be race, ethnicity, religion, poverty, greed, health, climate, and yes, morality.

The Dec. 20 & 27, 2010 issue of The New Yorker has a "Books" article "Tea and Antipathy - Did principle or pragmatism start the American Revolution?" by Caleb Crain that provides some interesting history about Boston merchants and their roles in certain uprisings. Perhaps its wasn't just taxation without representation.

I have noted in the past that I oppose the no comment policy of most contributors here. But, there is a partial out. More than once, other blogs (e.g., Volokh Conspiracy, a type of "opposite number" blog, Balkin and Barnett on health care etc.) has cited recent posts.

These other blogs had comments. VC is having multiple rather interesting (if repetitive by now) debates over the recent health care ruling, including one that debates a recent blog post here. The debates underline the post is flawed. Such is the value of free discussion.

I started the book cited by Shag on the Tea Party's view of history. [The author was on Rachel Maddow a few months back.] Telling point: the author early on cite a 20th Century use of the term "Founding Fathers," but does not note Lincoln and Douglas' citation of "the fathers" (see, e.g., Lincoln's excellent Cooper Union speech).

If historians do not always provide a complete account, imagine how self-interested partisans (and judges!) will do trying to be "originalist."

Joe, Jill LePore has a brief portion on originalism that is interesting, especially Justice Thurgood Marshall's comments for a Bicentennial celebration of the Constitution and its flaws. She makes a couple of references to Lincoln (and Douglas). Her primary focus was upon the Founders of the Revolution/Constitution/Bill of Rights countering the views of the Tea Party people she met in Boston on such Founders.

With respect to the Civil War Amendments, Randy Barnett has an interesting paper "Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment" available via SSRN:

It is quite lengthy so I have read only the section on Lysander Spooner as he is part of a research project I have been working on. (I did spot reading of some of the other abolitioniest.) Spooner had published a paper in 1845 claiming that slavery was unconstitutional. Several of the other abolitionists in Barnett's article had also written papers with similar themes. Some of these abolitionists may have had influence on Lincoln.

Thanks for the reference to the Cooper Union speech. I plan to reread it.

I read Thurgood Marshall's speech a couple times; having just read the new Brennan bio, Brennan's speech that was in effect an answer to Ed Meese's originalist approach also is worthwhile. JL's book is a bit thin, but it's a worthwhile read. The Spooner bit should be appreciated by Barnett with his revisionist views. Interesting, as long as they are not deemed "originalist" except in an ironic sense.

In an earlier post, Joe had said:

"If historians do not always provide a complete account, ...."

Well, "history" is not static. I recently was introduced to the writings of the late historian C. Vann Woodward, who had over the years received many awards for his writings on history. In particular, I was interested in a speech he delivered to the Southern Historical Association in 1953 as its president titled "The Irony of Southern History." I was finally able to obtain it in Woodward's book "The Burden of Southern History" originally published in 1960, in an updated (2008) Third Edition (post Woodward's demise) with a foreward by William E. Leuchtenburg. (Woodward had attended to several earlier editions that added essays/articles he had written since 1960, some reflecting upon portions of the first edition, including the speech I was interested in.

Upon obtaining the book, I was first attracted to Woodward's Chapter 3 "John Brown's Private War" just under 40 pages in length. I have read quite a few books on Brown in connection with a research project and it is obvious that Woodward was most impressed by Robert Warren Penn's bio on Brown. Woodward was quite selective in his discussion of Brown and thus incomplete.

To get back to my point, I then read Leuchtenburg's foreward which discussed some shifts in Woodward's attitudes since 1960, including on the civil rights movement of the 1960s. I now plan to start with Chapter 1 to try to understand where Woodward was coming from (besides the South) as a historian. Currently there are discussion developing as we approach the 150th anniversary of the the Civil War. From bits and pieces I have read in the NYTimes, it looks like there is a revisionist movement underfoot that is coincidental (?) with the term of the first African American President of America. Woodward's name pops up in these discussions. Let's see if there is a reenactment of the Civil War by historians and others with a war of words. One of the interesting aspects of Jill LePore's book to me were the competing efforts with respect to the Constitution's Bicentennial celebration. Yes, "history" is not static but it sure makes lots of noise.

As a follow up to my earlier comments on history, today's NYT (12/19/10) OpEd pages feature:

1. Jill LePore's "Paul Revere's Ride Against Slavery," and
2. Edward Ball's "Gone With the Myths."

Mary Dudziak has just cross-posted above from her Legal History Blog a post on Jack Rakove's review of Pauline Maier's new book "Ratification: The People Debate the Constitution, 1787-1788" that provides a link to the Jan/Feb Harvard Magazine setting forth the full review. The PDF link is not working so I read Rakove's review on screen with aging eyes. It makes me want to read the book. One aspect of originalism deals with the framers, perhaps ignoring the ratifiers. Why? Because that might not support the desired meaning. I think Sandy would be interested in the review as it addresses concerns of his with the Constitution and the need for reform. I'll be keeping an eye out for the reactions of the "usual suspects" originalist to both the review and the book.

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